Although it’s unlawful to shout “fire!” in a crowded theater,1 or to announce having a bomb in your possession in a crowded airport,2 some conduct that may insight panic or commotion is actually protected speech under the First Amendment.
However, if an officer is confronted with situations that appear to be a criminal in nature that may actually be protected speech under the First Amendment, do they make an arrest or do they walk away?
This column answers this question by reviewing a recent 9th Circuit Court of Appeals decision, which held that printed messages concerning terrorism and weapons of mass destruction painted on a vehicle were protected speech under the First Amendment.
In Fogel v. Collins3 a Grass Valley, Calif., sergeant received an anonymous phone call regarding a parked Volkswagen van. The caller told officials the message on the van frightened her. The sergeant located the unattended van in the parking lot of an apartment complex. The following messages were printed on the rear window in block letters:
I am a *@!%#$ suicide bomber terrorist!
Pull me over! Please, I dare ya!
Another message was below the window in slightly smaller letters:
Allah praise the patriot act…*@!%#$ Jihad on the First Amendment!
P.S. W.O.M.D on board!4
The rest of the van was decorated with slogans and paintings, including an American flag, which were not threatening in nature.
The sergeant determined the van belonged to 22-year-old Matthew Fogel, a resident of another town about four miles away. The sergeant believed the messages on the van were merely “political satire,” took photos of the van and returned to the station.5
The sergeant then called6 his captain and read him the messages. The captain believed a criminal act had been committed. He ordered the sergeant to treat the matter as a bomb threat and to remove the van.
After learning Fogel had no criminal history, officers located him and questioned him about the van. Fogel told officers he had painted the messages on the van earlier in the day. He assured the officers there was no bomb inside the van, and even encouraged them to search it.
Although the captain directed officers to treat the situation as a bomb threat, the officers failed to follow the police department’s protocol for bomb threats and searched the van without finding a bomb or other illegal contraband.
While the officers were still in the parking lot, they received information from the Department of Homeland Security, which had been notified about the incident. The agency reported it was “familiar with Fogel as being a local anti-government type person” who was considered a “local nut.” 7
The officers then arrested Fogel for violating several sections of the California Penal Code:
• § 422 for “willfully threaten[ing] to commit a crime, which will result in death or great bodily injury to another person”;
• § 148.1 for a “false report of secretion of explosive or facsimile bomb”; and
• § 415 for the “use of offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”
The police also called a towing company to remove the van. The officers told Fogel he would have to remove or paint over the messages in order to retrieve the van. Fogel was held in jail overnight but was released the following morning after the local prosecutor declined to prosecute the charges. Fogel made a federal case out of his arrest. He filed a civil rights lawsuit against the Grass Valley Police Department (“City”), the sergeant, captain and other officers. Fogel alleged that the officers violated his rights under the 1st, 4th and 14th Amendments when they arrested him and seized his van. He also sued for false arrest, and assault and battery under California state law.
After the discovery phase of the litigation was complete, the defendant, police officers and the City filed a motion for summary judgment.8 The district court found there was a genuine issue of whether the writing on the van constituted a “true threat.”9 If the message was deemed to be a “true threat,” it would not be protected under the First Amendment. However, the district court found that the officers were entitled to qualified immunity because reasonable police officers could have believed the First Amendment didn’t protect the message. The district court also held that the City had not acted pursuant to an unconstitutional practice or policy. Fogel appealed the district court’s decision to the 9th Circuit Court of Appeals.
The 9th Circuit first addressed whether the officers violated a constitutional right.10 The Court stated that it was well established that the First Amendment protects speech that others might perceive as offensive or even frightening. It also asserted that our courts “have long recognized that speech may need to be abrasive or upsetting in order to draw attention to the speaker’s cause.”11 The 9th Circuit acknowledged, however, that the protections afforded under the First Amendment’s free speech clause are not absolute. In fact, if the speech constitutes a “true threat” it is not protected speech under the First Amendment.
A “true threat” has been defined as “an expression of an intention to inflict evil, injury, or damage to another.”12 The 9th Circuit stated that in most cases where the speech constituted a true threat, the threatening speech targeted specific individuals or was communicated to a specific individual. On the other hand, speech that was political rhetoric and not directed at anyone in particular was deemed not to be a true threat and, therefore, protected under the First Amendment.
In analyzing Fogel’s painted messages in the context available to someone observing the van, the 9th Circuit found that the statements were protected speech. Under the objective standard, the court found that “a reasonable person would [not] foresee that the statement [on the van] would be interpreted by those to whom [Fogel] communicates the statement as a serious expression of intent to harm or assault.”13
Taking into account the entire context of Fogel’s messages on the van, the Court noted it would be difficult to see how any reasonable observer would believe the statements were serious threats to cause harm. While it is true the captain believed the statements to constitute a threat, the 9th Circuit stated he was only read the words over the telephone and did not see them in context.
The Court also pointed to the fact that the sergeant, when he first viewed the van, did not take the threats seriously. In addition, after the officers were told to treat the incident as a bomb threat, none followed the department’s protocol.
Under the subjective standard, the 9th Circuit noted that the officers found Fogel to be mild-mannered and that Fogel’s reason for painting the message (to shock observers of the van into thinking about recent political events) was exactly the kind of criticism of the government the First Amendment was meant to protect.
Nonetheless, the 9th Circuit affirmed the district court’s granting of summary judgment in favor of the officers based on qualified immunity grounds reasoning that at the time of the incident, not all police officers would have believed Fogel’s speech was protected by the First Amendment.
What Does This Mean For You?
Arguably, even four years after the incident involving Fogel, and despite the 9th Circuit’s decision, not all reasonable police officers would agree that Mr. Fogel’s conduct is protected speech under the First Amendment. It all depends on whom you ask.
For example, SWAT officers in this country may have received special intelligence regarding other potential threats to this country that patrol officers might not. Therefore, given the same set of circumstances today, some officers may treat the messages as a real threat, while others may view it as a political message.
So, who’s right? Does it make a difference that we now have the Fogel case setting precedence and putting officers on notice that such speech is protected under the First Amendment? What if a “real” suicide bomber rents a Volkswagen van and paints words on the rear window exactly as Fogel did, knowing that the Fogel decision alerts officers not to make an arrest based on these messages. What should officers do?
In a similar situation, it is prudent for officers to consider the totality of the circumstance and the contextual display of the message. Err on the side of being safe if presented with circumstances regarding a suspect’s speech that appear to be a terrorist threat. Follow your agency’s protocol for dealing with bomb or terrorist threats. If no protocol exists in your agency, develop one and follow it. If no bomb is located, but time, money and resources have been spent dealing with the potential threat, you may need to contact your local prosecutor before charging the suspect with breach of the peace and or making a terrorist threat. Finally, document, document and document. Make sure the specific facts are noted in the report and take pictures of the messages.
1. Schenck v. United States, 249 U.S. 47 (1919).
2. Lewis v. Continental Airlines, Inc., 80 F.Supp.2d 686 (S.D. Tex. 1999).
3. No. 06-15395, 2008 WL 255684 (9th Cir., June 27, 2008)
4. Id. at *1.
6. It’s unclear whether the “call” was via radio or telephone.
7. Fogel, at *2.
8. A motion for summary judgment essentially asks the Court, after reviewing the evidence, to dismiss the case against the movant and as long as there is no dispute in material facts that need to be resolved before a jury, the court can enter judgment in favor of the movant as a matter of law.
9. Fogel, at *2.
10. For purposes of this article, only the claims against the officers are discussed. With respect to the claim against the City, the 9th Circuit agreed with the district court that the claim against it should be dismissed.
11. Fogel, at *3 (citation omitted).
12. Id. at *4.
13. Id. at *5.